A Supremely Wrong Decision: Judicial vs. Liberal Conservatism

The Supreme Court has spoken.

In Obergefell v.Hodges, the Court announced that Homosexual couples (hereinafter LGBT) have a “fundamental right of dignity” to marry each other, and this “fundamental right” must be upheld by all levels of state and federal government.

As this decision has many possible implications for the Orthodox Jewish community, the major organizations, including Agudath Israel, the Orthodox Union, and the RCA have issued warnings of dangers to come. Some are afraid of the moral implications in this major departure from the Judeo/Christian values upon which our country was founded. Others fear that Justice Alito's prescient warning that it "will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent." He thus predicts that any refusal to bow to the LGBT agenda will not be tolerated, and rendered illegal. Matters ranging from clergy being compelled to marry LGBTs , to bakeries being coerced to provide wedding cakes for LGBT couples, coercion of parochial schools to hire LGBT teachers, and many other likely scenarios are already being debated. Religious liberty for those who cleave to their traditional beliefs is under attack, and only time will tell how much damage will be done.

I write today to discuss a different aspect of this saga. Truth be told, the separation between Church and State has generally been a blessing for our community. Most of us understand and accept that though we may not like certain laws that are passed, and deplore the values they enshrine in our legal canon, nevertheless the price for a free society in a pluralistic culture is that we have to live and let live, accepting that in a democracy there will be some ideas more to our liking than others. Thus the idea that LGBTs have the right to call their union “marriage” – while not to our liking and while we may deplore its effect on society – is not something that I feel we have a right to protest, if the law would have come into being through legitimate means. We do not, indeed should not, attempt to impose Torah values upon our host country, but rather should embrace our role in leading exemplary lives, and hope that the power of Torah and its values will be a force for the good in our society.

However, this case was one decided by illegitimate means. The method by which the Court arrived at its decision concerns me greatly, both as an attorney interested in Constitutional Law, and more importantly, as an observer of how the Halachic process is being hijacked by agenda driven individuals.

In many media descriptions of the case, the reason that the four “conservative” justices dissented is due to their anti-LGBT, anti-liberal, pro-traditionalist political views; they see LGBTs as sinners and deviants who should be denied the rights granted to heterosexual couples. The liberal justices, on the other hand, are enlightened progressives – paragons of tolerance, understanding, and staunch defenders of liberty and freedom – who saw discrimination against LGBTs in denying them the right to marry. Reading of the actual dissents published by those justices will show otherwise.

Justice Scalia began, “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever . . . living arrangements it wishes.” In other words, his dissent had NOTHING to do with whether or not LGBT marriage should be recognized by society. “It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact – and the furthest extension one can even imagine – of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an un-elected committee of nine, . . . robs the People of the most important liberty . . . the freedom to govern themselves”. He went on to describe (with delightful eloquence) that in this decision the Court had sunk to a new low of legislating from the bench, claiming to find words and values in the Constitution that simply aren't there, in order arrive at a desired result, whether or not supported by any fair reading of the Constitution. In a manner similar to the famous case of Roe v. Wade, when the Supreme Court decided that the Constitution (which says nothing remotely about abortions) forbids any restriction on abortions, this decision finds the fundamental right for LGBTs to marry somehow embedded in the constitutional text. I urge the interested reader to read Justice Scalia's opinion in full. Or as Chief Justice Roberts said, “Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.”

Political and Judicial Liberalism vs. Conservatism

The reason that the conservative Justices are being so vilified over this opinion is due to a common confusion conflating the debate between Political Liberalism vs. Conservatism and the one between Judicial Liberalism vs. Conservatism. We are all familiar with the Political divide between Liberals and Conservatives. They have different opinions on things such as whether or not the government or private individuals should solve problems, how welfare should work, the merits of abortion, the place of traditional values in society, and so on.

Judicial Liberalism vs. Conservatism is a different matter altogether.

Judicial Conservatives, believe that the role of judges is not to make law or “legislate from the bench”, but rather to look at laws as they were formulated by the legislature, and apply them as written, so long as they are not inconsistent with the Constitution. It is not for a judge to decide what the law should be, or to fix laws that were written poorly. If there is a challenge as to whether a law violates the Constitution, a judge ought to consider the words of the law and of the Constitution, and perhaps the intent of the writers when it was written. If the law does not conflict with the Constitution, it should stand; if not, it should be declared unconstitutional. The legislature then has the option of either re-writing the law, or seeking to amend the Constitution if the matter is important enough.

In contrast, Judicial Liberals believe that the Constitution is a “living document”; its meaning changing with the times. The role of the judge is not to not to read only the plain meaning of the words, but rather to apply his/her understanding of the broader meaning of constitutional principles as they apply in today's world with regard to the values of modern society, and if necessary, expand the meaning of the words of the Constitution to arrive at the result that they feel is just and proper, even if it does not fit in the plain meaning of the text.

The crux of this debate is whether societal issues are to be decided democratically between, typically, political liberals and conservatives, and voted upon by elected representatives, or whether the Court, by declaring a certain position “unconstitutional”, can end that debate and render one side of the argument illegal; not because of the words of the Constitution, but because of the judges' own sense of fairness and equity.

An illustrative example of this is the famous case of Roe v. Wade, holding that there women have a Constitutional fundamental right to have an abortion. As is well known, there were and are strong differences of societal opinions as to whether abortion on demand should be legal, based on a whole host of reasons. Various states wrote differing laws as to its legality, depending on the prevailing opinion in those states, until Roe v. Wade was decided.

Writing for the majority, Justice Blackmun held that although the Constitution is completely silent about abortions, one could discern from an “emanation of a penumbra” of several of the Constitution's rights – particularly the Fourteenth Amendments provision, “nor shall any State deprive any person of life, liberty, or property, without due process of law”, (a phrase repeatedly contorted by the Court into many different meanings in order to justify whatever the Court wished to hold) – that there is a general right to privacy, including a woman's right to terminate her pregnancy. This was a classic case of Judicial Liberalism, in which the words of the Constitution were said to mandate a result that – while appearing nowhere in the text – were what the Judges claimed that the Constitution taught when considered more broadly.

The main dissent, written by Justice White, set out the basic approach of a Judicial Conservative:

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand . . .

This, then, is DIFFERENT than the debate between political liberals and conservatives. It is about whether there are limits on the power of un-elected judges to find the result they wish in questionable readings of the Constitution, or whether the Court must read the Constitution and laws plainly, and let elected members of the Legislature decide democratically if and how to change the laws they deem necessary. THIS was the crux of the issue decided in the instant case of legalizing LGBT Marriage as well; whether there is a right to LGBT marriage somewhere in the Constitution (the majority view), or not (the Dissent). This question is very different from whether or not government or society should recognize LGBT marriage.

I write about this at some length because it is important to understand not only American civic affairs, but how these attitudes are also evident in regard to recent approach to Halachic innovations.

Halacha and Constitutional Law

When I went to law school, I often was asked if there are major differences between Jewish Law (Halacha) and American Secular law. One critical one is the following.

Halacha is based on the revealed will of G-d as given to the Nation of Israel via the prophecy of Moshe Rabbainu (Moses). That revealed Divine Law is the basis and measure for all of Halacha, whether explicit or Halacha L'Moshe MiSinai. While there is some purely Rabbinic law, instituted through the process of Gezeros and Takkanos, (preventative decrees or positive ordinances), the great majority is based on Divine Law. (cf. Rambam's Introduction to the Talmud for an in-depth exposition of the differences between Divine and Rabbinic law).

Conversely, American Law is man-made law; it is, as formulated by Lincoln, “of the people, by the people, for the people”. It was made by humans in a certain place and time, and ought to be able to be changeable by humans of another place or time.

Both systems have ways in which the laws are to be applied to the infinite varieties of situations that will arise.

In the case of American law, the legislature is entrusted with making law, and the judiciary has the power of review to ensure that the laws do not conflict with bedrock principles, i.e. whether they are constitutional. These principles are designed to be very firm, but are ultimately changeable via the Amendment process, which although possible, is hard to achieve.

By contrast, Jewish Law is to be applied – ideally by a Sanhedrin, or in its absence by great Poskim – based on precedent and rigorous Halachic analysis. They may not make any law that conflicts with Divine Law, which is eternal and unchanging; there is no “Amendment”-like procedure available. Rabbinic Law may change very rarely, limited to when there is a consensus among virtually all accepted great Halachic scholars of a time that a new idea or change in Rabbinic Law is warranted. The task of Poskim is not to come up with new law, but rather to apply the Received law to new situations, by finding the truest application of timeless principles and texts to the matter at hand. Innovations, or changes in our Mesorah or traditional practice, are extremely rare, and are completely out of the question for basic Halacha.

Given my training in yeshivos for many years, and the respect thus gained for this way of thinking, it is unsurprising that I tend to agree wholeheartedly with the approach of Judicial Conservatives. While the Constitution, lehavdil, is not Torah M'Sinai, it is an extremely wise document that has been the basis of this greatest democracy on Earth for well over 200 years, and has served as a guide for the society that has brought more liberty, equality, and prosperity to its citizens than any other in world history. The Constitution, very much including its doctrine of the Separation of Powers, deserves to be treated with utmost respect. Implicit in that, is that one not read into the Constitution what is not there, in order to allow, or forbid, some practice based on whatever reason one may have, no matter how important. I thus applaud Justice Scalia and the other dissenters for refusing to be distracted from the great task and responsibility with which they were entrusted.

Thus far, the traditional view. Since time immemorial, however, there have been those who view Torah and Halacha differently. They do not see the Torah, and certainly Rabbinic Law, as faithful to a Divine Law. Rather, they see Jewish Law as being the product of human wisdom, perhaps written with some degree of divine inspiration, but ultimately human. To quote my neighbor down the street, Rabbi Gerald Skolnik of the Forest Hills Jewish Center on the recent LGBT decision, “we understand the Bible not as one divinely revealed-at-Sinai unified document, but rather as a product of different Biblical authors . . .[who] endeavored to translate the nature and content of the revelation at Sinai, whose exact content we are not privy to, into a system of behavioral and moral guideposts for the Jewish people”. All the more so they see the Constitution as the product of human genius, which ought to be adaptable to change if contemporary culture and values lead to a different way of thinking.

Until recently, it was only the non-Orthodox who took this approach to the Torah and Halacha. Whether it was the Haskalah, Reform or Conservative movements, or other forms of deviance from traditional views, the basis of the license that they granted themselves to change Halacha and permit that which had been always forbidden was to deny the Divine authorship of the Torah and the integrity of the Rabbinic Tradition in applying the Halacha.

In our time, however, a new and radically dangerous strain has developed, supposedly within Orthodoxy, who while claiming to subscribe to traditional beliefs regarding the Divine authorship of the Torah and the Rabbinic tradition, nevertheless has adopted the Conservative methodology toward Halachic decision-making. Rather than seeking to submit to Halachic authority, they first choose the desired outcome and then subjectively build a case that leads to it, by cherry-picking sources that favor the predetermined result; much like liberal jurists read into the law that which they wish to find there. This approach has been employed by Open Orthodox rabbis in their quest to omit certain morning blessings that do not conform with egalitarian values, or to allow for women to be ordained as Rabbis, or in publishing Halachic responsa that permit conversion without full acceptance of Mitzvot, or of serious changes in procedures for converting women, or that permit women to nurse in front on men in shul, and that encourage donating money to build churches, and many other Halachic innovations that go against our Mesorah.

Furthermore, unlike traditional methodology – in which contemplation of introducing new practices that overturn long and strongly held Halachic positions may be adjudicated, if at all, only by the most senior Poskim – young Open Orthodox rabbis who have neither served on a Beis Din nor received intensive training with Poskim anoint themselves competent to unilaterally adjudicate the most weighty and sensitive of issues. In short, rather than applying Halacha on its own terms, they seek to adapt Halacha to contemporary values. No surprise, then, that they are thrilled with the Obergefell decision.

In conclusion, it is important for we who hold the Halachic process sacrosanct, and who value intellectual and legal integrity in our system of law, both Jewish and secular, to not be swayed by emotional arguments to distort the law, but rather to deeply respect the law and the process by which its integrity is guarded. Only by supporting efforts to uphold the law, and rather than changing the law to suit us, will we abide as a people of integrity and eternal values.